Reed,
J.
[Orally]:
—1
do
not
think
it
necessary
to
review
in
any
extensive
way
the
facts
in
this
case.
Agreed
statements
of
facts
have
been
filed
which
speak
for
themselves.
It
suffices
to
note
that
it
was
agreed
that
Jet
A-1
Fuel
is:
(a)
a
fuel
oil;
(b)
suitable
for
use
in
internal
combustion
engines
of
the
compressionignition
type;
and
(c)
was
not
used
as
heating
oil.
Diesel
fuel
is
defined
by
section
2(1)
of
the
Excise
Tax
Act
as
including
"any
fuel
oil
that
is
suitable
for
use
in
internal
combustion
engines
of
the
compression-ignition
type,
other
than
such
fuel
oil
that
is
intended
for
use
and
is
actually
used
as
heating
oil.”
The
commodity
in
issue,
then,
Jet
Fuel
A-1,
is
clearly
within
the
literal
words
of
that
definition.
Diesel
fuel
is
under
paragraph
50(1.1)(c)
of
the
Act
subject
to
a
certain
rate
of
tax.
In
addition,
certain
rebates
are
applicable
thereto
.
As
I
understand
counsel
for
the
defendant's
argument,
it
is
that
the
definition
of
diesel
fuel
in
subsection
2(1)
of
the
Act
must
be
read
in
the
light
of
the
context
of
the
Act
as
a
whole
,
and
that
in
that
context
Jet
Fuel
A-1
should
be
classified
as
aviation
fuel
which
does
not
fall
into
the
classification
of
diesel
fuel.
It
is
argued
that
it
should
be
taxed
under
paragraph
50(1.1)(d)
as
a
commodity
not
elsewhere
referred
to
in
that
subsection.
After
carefully
considering
the
sections
of
the
Act
which
have
been
cited,
which
refer
to
diesel
fuel,
aviation
fuel
and
gasoline
,
I
cannot
reach
the
same
conclusion
which
the
defendant
has
reached.
I
am
not
convinced
that
"aviation
fuel”
in
the
Act
is
clearly
a
category
distinct
from
“diesel
fuel"
and
"gasoline".
For
example,
in
clause
9.1
of
Schedule
I
of
the
Act
“aviation
fuel"
is
used
as
encompassing
at
least
some
gasoline
(aviation
gasoline).
This
usage
would
indicate
that
aviation
fuel
may
be
a
concept
which
is
being
used
in
the
Act
as
a
classification
which
overlaps
both
diesel
fuel
and
gasoline.
In
addition,
while
diesel
fuel
and
gasoline
seem
to
be
identified
for
the
purposes
of
subsection
50
(1.1),
by
reference
to
their
physical
nature
or
composition
(as
I
understood
counsel's
explanation
gasoline
is
a
more
highly
refined
category
of
distillate
than
diesel
fuel),
the
classification
"aviation
fuel”
relates
to
the
use
to
which
the
fuel
is
put.
The
evidence
establishes
that
both
gasoline
and
diesel
fuel
can
be
used
for
aviation
purposes.
If
one
returns
then
to
subsection
50(1.1)
and
the
definitions
set
out
in
section
2
of
the
Act,
one
finds
that
“gasoline”
is
defined
as
referring
to
"gasoline
type
fuels
for
use
in
internal
combustion
engines
other
than
aircraft
engines"
while
diesel
fuels
used
in
aviation
are
not
excluded
from
the
definition
of
diesel
fuel.
The
only
useexclusion
with
respect
to
diesel
fuels
is
use
as
heating
oil.
This
would
seem
to
indicate
that
it
was
purposely
decided
not
to
exclude
diesel
fuel
used
for
aviation
purposes
from
the
classification
diesel
fuel.
At
the
same
time,
I
agree
with
counsel
for
the
defendant's
argument
that
some
sections
of
the
Act
(23(3)(b),
23(9.1),
50(2.1))
seem
to
contemplate
three
separate
categories:
diesel
fuel,
aviation
fuel
and
gasoline.
In
the
absence
of
a
specific
definition,
however,
making
it
clear
that
these
are
intended
to
be
three
mutually
exclusive
categories
and
setting
out
the
boundaries
of
that
exclusivity,
I
think
I
would
be
reading
words
into
the
statute
that
are
not
there
if
I
was
to
use
the
phrasing
of
those
provisions
as
a
reason
for
holding
that
Jet
Fuel
A-1
did
not
fall
under
the
definition
of
diesel
fuel
as
set
out
in
section
2
of
the
Act.
For
the
reasons
given
the
plaintiffs’
appeals
will
be
allowed.
Appeals
allowed.
author
of
Construction
of
Statutes
(2nd
ed.
1983)
at
page
87,
E.A.
Driedger,
put
the
modern
rule
succinctly:
Today
there
is
only
one
principle
or
approach,
namely,
the
words
of
an
Act
are
to
be
read
in
their
entire
context
and
in
their
grammatical
and
ordinary
sense
harmoniously
with
the
scheme
of
the
Act,
The
object
of
the
Act,
and
the
intention
of
Parliament.
In
Lor-Wes
Contracting
Ltd.
v.
The
Queen,
[1986]
1
F.C.
346;
[1985]
2
C.T.C.
79;
85
D.T.C.
5310,
an
income
tax
case,
Mr.
Justice
MacGuigan
followed
the
approach
set
out
in
Stubart.
He
stated
the
appropriate
principle
of
interpretation
as
follows:
It
seems
clear
from
these
cases
that
older
authorities
are
no
longer
to
be
absolutely
relied
upon.
The
only
principle
of
interpretation
now
recognized
is
a
words-in-total-context
approach
with
a
view
to
determining
the
object
and
spirit
of
the
taxing
provisions.
The
same
approach
is
applicable
when
dealing
with
the
Excise
Tax
Act
as
when
dealing
with
the
Income
Tax
Act.
The
"words-in-total-context"
approach
of
MacGuigan,
J.A.
was
adopted
in
Westar
Mining
Ltd.
v.
Canada,
[1990]
2
C.T.C.
547;
3
T.C.T.
5325
(F.C.T.D.),
when
dealing
with
the
definition
of
“vehicles”
under
the
Excise
Tax
Act.
«Subsections
23(3)(b),
23(9.1),
50(2.1)
and
clause
9.1
of
Schedule
I
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